Public Sector Employment and
Management Amendment (Extended
Leave) Bill 2005

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Public Sector Employment and Management
Act 2002 (the Principal Act):

(a) to provide for certain employees of the State to have the benefit of additional
extended leave entitlements, and

(b) to replace (and simplify) provisions regarding the recognition of former
government service currently in the Transferred Officers Extended Leave Act
1961 (which is repealed by the proposed Act).

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Public
Sector Employment and Management Act 2002 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Acts and
regulations set out in Schedule 2.

Clause 5 repeals the Transferred Officers Extended Leave Act 1961 and the
Transferred Officers Extended Leave Regulation 1998.

Schedule 1 Amendment of Public Sector
Employment and Management Act 2002
Schedule 1 [4] omits and re-inserts Schedule 3 to the Principal Act and inserts
proposed Schedule 3A.

The current Schedule 3 provides for the extended leave entitlements of officers and
temporary employees of the Public Service. It also applies, by way of reference to the
Schedule in other Acts and instruments, to certain other State employees.

Proposed Schedule 3 provides for certain State employees to have certain extended
leave entitlements in addition to the entitlements provided for under current Schedule
3. A number of the existing provisions of Schedule 3 are also clarified.

Under proposed Schedule 3, a relevant State employee has the benefit of the
following additional extended leave entitlements:

(a) an entitlement to extended leave after service for, or in excess of, 7 years
(currently the Principal Act provides for an entitlement to extended leave after
service for 10 years),

(b) an entitlement to take extended leave on double pay for a proportionately
reduced period (currently the Principal Act provides for extended leave to be
taken on full pay or half pay),

(c) an entitlement to have a public holiday that occurs during a period of extended
leave not treated as extended leave.

Proposed clause 2 of Schedule 3 provides for an entitlement to extended leave after
service for, or in excess of, 7 years. The entitlement in respect of service between
7 years and 10 years is an amount of leave proportionate to the officer’s or temporary
employee’s length of service (up to 10 years) calculated at the rate of 2 months on
full pay for 10 years served.

Proposed clause 2 of Schedule 3 also provides for an entitlement to extended leave
on full pay, half pay or double pay (the amount of the entitlement varying
proportionately).

Extended leave taken is deducted from an officer’s or temporary employee’s
extended leave entitlement under proposed clause 8 of Schedule 3. Proposed clause
8 (2) of Schedule 3 provides that if a public holiday occurs while an officer or
temporary employee is taking extended leave, the amount of extended leave to be
deducted is to be reduced by the length of the holiday (one day or half a day, as the
case may be).

Proposed Schedule 3A contains the provisions included in the Principal Act to
replace and simplify the provisions of the Transferred Officers Extended Leave Act
1961. The object of this Schedule is to provide for the recognition of former
government service in the calculation of the extended leave entitlement of an
employee of a public sector service. The Schedule comprises 3 Parts. Part 1 contains
certain preliminary provisions.

Part 2 contains the provisions that set out the basis on which former government
service is recognised.

Proposed clause 6 of Schedule 3A sets out the conditions for former government
service to be recognised service. Prior employment in a public sector service or a
Commonwealth or interstate agency is recognised service for a public sector
employee in his or her current employment if the person’s current employment
immediately follows the prior employment or if the person is entitled by law or
administrative practice to have the service in the former agency form part of the
service in the current agency. Proposed clause 6 also provides for the mechanism by
which recognised service is recognised in a public sector employee’s current
extended leave entitlement by providing that the public sector employee’s service
with his or her current employer is taken to include his or her recognised service.

Proposed clause 7 of Schedule 3A provides for certain amounts of extended leave to
be deducted from the extended leave entitlement of a public sector employee whose
service with his or her current employer includes recognised service. The deduction
is to adjust the person’s entitlement in light of the inclusion of the recognised service.

Proposed clauses 8 and 9 make further provision for this adjustment.

Proposed clause 8 of Schedule 3A provides that a public sector employee who ceases
to be employed in a public sector agency and commences employment in another
public sector agency may elect to be paid the money value of his or her accrued
extended leave or to retain the entitlement to the accrued extended leave.

Proposed clause 9 of Schedule 3A provides that a public sector employee with
recognised service from previous employment in a Commonwealth or interstate
agency is deemed to have taken certain leave. The leave deemed to have been taken
under the proposed clause is deducted under proposed clause 7 of Schedule 3A. The
amount of the leave deemed to have been taken is calculated as if the leave was
accrued in the employment of the employee’s current employer. Calculating the
leave in this manner has certain consequences, including ensuring that the employee
cannot have a “negative” leave entitlement as a result of the deduction under
proposed clause 7 of Schedule 3A in respect of the recognised service.

Part 3 contains provisions that provide for recognised service to include service with
the Australian Defence Force and service in certain State statutory offices.

Schedule 1 [1] inserts a new definition, used in proposed Schedules 3 and 3A, in
section 3 (1) of the Principal Act.

Schedule 1 [2] makes an amendment to section 94 of the Principal Act, being an
amendment consequential on the amendments made by Schedule 1 [4] regarding the
recognition of former service.

Schedule 1 [3] amends section 95 to insert a note in relation to an election an
employee may make regarding annual leave under that section. The note inserted
corresponds to a note included in relation to the corresponding election regarding
extended leave (provided for by proposed clause 8 of Schedule 3A).

Schedule 1 [5] inserts a power to make savings and transitional regulations
consequent on the enactment of the proposed Act.

Schedule 1 [6] inserts savings and transitional provisions consequent on the
amendments made by Schedule 1 [1]–[4].

The savings and transitional provisions include a provision validating anything done
or omitted to be done on or after 1 January 2005 (but before the commencement of
Schedule 1 [4] to the proposed Act) in association with Schedule 3 to the Principal
Act (as it would have been in force had the proposed Act then been in force).

The savings and transitional provisions also provide for how the amendments
regarding additional extended leave entitlements apply to certain State employees
and not to other State employees. The amendments made to provide the additional
extended leave entitlements are to implement a Memorandum of Understanding
made in settlement of proceedings in the Industrial Relations Commission of New
South Wales, matters IRC 3817 of 2004 and IRC 4561 of 2004.

The Memorandum of Understanding does not apply to all persons to whom proposed
Schedule 3 to the Principal Act applies. Schedule 3 applies to 2 categories of person.

The first category is officers and temporary employees within the meaning of the
Principal Act, being officers and temporary employees of the Public Service, to
whom Schedule 3 applies under its own terms. The second category is persons to
whom Schedule 3 applies by force of Acts (other than the Principal Act) or
instruments that apply the provisions of Schedule 3 to the person by reference to
Schedule 3.

Proposed clauses 16 and 17 in Schedule 4 to the Principal Act limit the effect of the
amendments conferring the additional extended leave entitlements to the 2 categories
of persons to whom the Memorandum of Understanding (or a corresponding
agreement or determination) applies.

In respect of the first category of persons referred to in the previous paragraph,
proposed clause 16 excludes the application of the additional extended leave
entitlement amendments to the persons listed in the Table to the clause. The persons
listed are persons to whom Schedule 3 applies by its own terms but to whom the
Memorandum of Understanding, or a corresponding agreement or determination,
does not apply.

In respect of the second category of persons, proposed clause 17 excludes the
application of the additional extended leave entitlement amendments to persons to
whom Schedule 3 applies by force of the Acts and instruments set out in the Table to
the clause. The persons listed are persons to whom Schedule 3 applies by force of the
Acts and instruments set out in the Table but to whom the Memorandum of
Understanding, or a corresponding agreement or determination, does not apply.

Persons currently not entitled to the entitlements conferred under the Memorandum
of Understanding may become entitled to corresponding entitlements as other
industrial claims are settled. Proposed clauses 16 and 17 of Schedule 4 to the
Principal Act provide for the Governor to, by proclamation, omit items from the list
in the Table to the relevant clause as persons referred to in the item become entitled
to extended leave entitlements that correspond to the entitlements of persons to
whom the Memorandum of Understanding applies.

Schedule 2 Amendment of other Acts and
regulations
Schedules 2.3–2.6 amend the Police Regulation (Superannuation) Act 1906, the
State Authorities Non-contributory Superannuation Act 1987, the State Authorities
Superannuation Act 1987 and the Superannuation Act 1916 so as to provide that, if
extended leave is taken, remuneration in excess of leave on full pay is excluded from
the relevant definition of salary in each Act. The amendments also provide a power
to make savings and transitional regulations. The exclusion of the remuneration in
excess of leave on full pay from the relevant definition of salary excludes, for
example, double pay from inclusion in the calculation of superannuation benefits.

This amendment is to avoid a person’s salary, as included in the calculation of their
superannuation benefits, being artificially inflated by the inclusion of double pay.

Schedules 2.2 and 2.7–2.9 make amendments consequential on the repeal of the
Transferred Officers Extended Leave Act 1961 and the replacement of that Act’s
provisions by proposed Schedule 3A to the Principal Act.

Schedule 2.1 makes an amendment consequential on the omission and re-insertion
of Schedule 3 to the Principal Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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